Wednesday, August 24, 2005

Football and the Idea-Expression Dichotomy

Continuing the thread if not the theme of the last three blogs, today's is on the idea-expression dichotomy, prompted by a June 27, 2005 opinion in Reed v. Peterson, by Judge William Schwarzer of the ND California. The case was brought to my attention by Cathy Kirkman of Wilson Sonsini, who runs the fantastic SVmedialaw blog, which I highly recommend.

Reed wrote a book called "Football Clock Management." The book advocated that coaches and players use prescribed offensive and defense strategies for managing time during a football game. Defendant wrote a competing book called "The Football Coaches' Guide to Clock Management." As if Baker v. Selden never existed, plaintiff in Reed apparently claimed a copyright "in the use of principles and rules as a method of instruction of clock management." Judge Schwarzer quickly dispatched the claim (but without citing Baker), noting the bad things that would happen if plaintiff prevailed as well the thin nature of copyright in factual works. His opinion is a solid discussion of frequently-recurring issues.

Baker v. Selden is often referred to as "about" the idea-expression dichotomy, even though it never used the word idea or really discussed the concept. I think of Baker as a "blank form" case, derived from the very end of the opinion which expresses the Court's actual holding. But if Baker is an "idea-expression dichotomy case" what does that mean? Indeed, what does it mean to say that Section 102(b) "codifies" the dichotomy? We would have to know what the dichotomy is at the least, why it is a "dichotomy," and how we can use it.

In a recent case in the SDNY, discussed in a prior blog involving photographs, Judge Kaplan doubted that the idea-expression has any application beyond literary works, and certainly none to visual works. Reed involved a literary work so it could have application even for Judge Kaplan. In the end, though, I think we are better off if we appreciate that the idea-expression dichotomy is not an analytical tool; it is not a test; "idea" and "expression" are simply labels that reflect that some material is protected and some isn't, and that determination is always after-the-fact. See Veeck v. SBCCII, 293 F.3d 791, 816 (5th Cir. 2002)(en banc)(Judge Weiner, dissenting); Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir. 1971).

"Idea" and "expression" are not categories that have content; they do not express set characteristics; they are just metaphors by which we pretend we are reasoning a priori, when in truth we are engaged in fact-finding.

8 comments:

Joshua Wattles
said...

Maybe the inquiry isn't within the idea-expression dichotomy but in the meaning of "expression" standing on its own. The distinction isn't to be found in the "idea" part because it isn't part of the copyrighted subject matter. I would say the content, the copyrightable subject matter, must constitutionally be in some manner an autorial expression in a fixable form. Choreography even its most abstract forms and even as a "victory dance" has that autorial and communicative intent. The movement in footbal plays communicates nothing when fixed or otherwise. It just moves the ball in the context of a game. Tai Chi - - now there's a tougher case than football or Yoga that you could use in one of your exams because each movement is intended as a story fitting within the sequences selected by the master.

What I was trying to say, and maybe you too, is that there is really one one inquiry: is there protectible material or not? My emphasis on the fact nature of the inquiry (and I may have gone too far rhetorically in knocking the legal principle side of things) is to figure out who does the deciding, the court or the jury?

Isn't the more substantial (and more judicially administrable point) of Baker that you can't copyright a useful system (such as blank forms for a system of accounting)? Going back to your yoga discussion and the football discussion above, that's the type of thing Baker said is eligible for patent, not copyright.

You are right in suggesting that I was focused on the legal requirements. Many cases and the statute itself gloss over the autorial component and the expressive aspect to content that can be protected by copyright. Dichotomies work well in pushing the analysis all the way to one side or the other. This idea-expression dichotomy is like a simple "on/off" switch. But thinking in terms of dichotomy is almost counter-productive to resolving the tough middle ground situations. Football plays, yoga sequences and forms, tai chi movents and some forms or choreography, just like lists for Yellow Pages or bibliographies are complex problems in terms of qualification for copyright protection. Figuring out the answer is probably a dreaded misture of law and fact.

Wow, no spell check on this blog! It's "movements" instead of "movents" and it's "mixture" instead of "misture." "Misture" doesn't seem to mean anything according to the web dictionaries - - but it sounds like something "of the mist" and so it could be a good choice of language to combinations of law and fact after all.

"Idea" and "expression" are not categories that have content; they do not express set characteristics...

Hey, this doesn't sound right! That's like saying "law" and "ideology" are not categories that have content; they do not express set characteristics, judges just engage in fact-finding that suits them to protect whatever they want.

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This is a personal blog, not a Google blog. It is about my book Moral Panics and the Copyright Wars, published by Oxford University Press. Please don't attribute anything in the blog or the book to Google, which employs me.